Arias v. 76 Taqueria No. 2 Corp. et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Order, the court adopts Judge Bloom's thorough and well-reasoned recommendations. Accordingly, plaintiff's motion for settlement approval 25 is DENIED wi thout prejudice. The parties are granted leave to file a new motion for settlement approval which addresses the concerns raised by Judge Bloom's report and recommendations 26 . The court further ORDERS: (1) plaintiff's request to withdraw her motion for default judgment 22 is GRANTED; (2) plaintiff's motion for extension of time 28 is GRANTED, and the parties shall file a new motion for settlement approval within thirty (30) days of this Order; (3) plaintiff shall serve a cop y of this Order on defendants; (4) defendants shall immediately file a notice of appearance on ECF; and (5) the parties shall consider consenting to magistrate judge jurisdiction such that Judge Bloom may rule on the motion for settlement approval without need for a Report and Recommendation. Ordered by Judge Kiyo A. Matsumoto on 7/5/2017. (Grover, Vanish)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FIDELA ARIAS (A.K.A. ADELA ARIAS),
individually and on behalf of others
ORDER ADOPTING REPORT
76 TAQUERIA NO. 2 CORP. (D/B/A
COATZINGO RESTAURANT); 79-11 COATZINGO
RESTAURANT, INC. (D/B/A COATZINGO
RESTAURANT); MANUEL SANCHEZ; MAXIMO
DOE; and RUFINO ZAPATA,
MATSUMOTO, United States District Judge:
On April 28, 2015, plaintiff Fidela Arias (“plaintiff”)
commenced this action against defendants 76 Taqueria No. 2 Corp.,
79-11 Coatzingo Restaurant, Inc., Manuel Sanchez, Maximo Doe, and
Plaintiff filed an amended complaint on October 2,
(See ECF No. 11, Amended Complaint (“Am. Compl.”).)
Plaintiff alleges that she was employed as a tipped
waitress at defendants’ restaurant in Jackson Heights, New York
from approximately October 2012 to April 2015.
Compl. ¶¶ 5, 20, 50.)
(ECF No. 11, Am.
Notwithstanding her designation as tipped
staff, plaintiff alleges that she spent “several hours each day
performing non-tipped duties.”
Id. ¶¶ 5, 9.
worked in excess of 40 hours per week, and in excess of 10 hours
Id. ¶¶ 6, 8.
From approximately October 2012 through
approximately October 2013, plaintiff was paid a fixed salary of
approximately April 2015, she was paid a fixed salary of $120 per
Id. ¶¶ 56, 57.
rights under the Fair Labor Standards Act (“FLSA”) and the New
defendants failed to pay her minimum and overtime wages, id. ¶¶
88-111, that she did not receive “spread of hours” pay as required
by the NYLL, id. ¶¶ 112-115, and that defendants failed to comply
with NYLL recordkeeping and wage statement requirements, id. ¶¶
This suit purports to be a collective action under the
FLSA, although no request for certification of a collective action
has been made.
On October 25, 2016, plaintiff requested a certificate
of default against defendants, on the basis that defendants failed
to respond to the amended complaint or otherwise appear in this
(ECF No. 19, Declaration in Support of Request for
Certificate of Default.)
on October 27, 2016.
Default was entered against defendants
(ECF Entry of Default dated Oct. 27, 2016.)
Plaintiff moved for an entry of default judgment against defendants
on November 7, 2016, seeking default judgment, damages, attorneys’
fees and costs.
(ECF No. 22, Motion for Default Judgment.)
On March 13, 2017, plaintiff advised the court that
plaintiff and defendants reached a resolution, and submitted the
parties’ settlement agreement for court approval.
Motion for Settlement Approval.)
(ECF No. 25,
On April 7, 2017, the court
referred the motion for settlement approval to Magistrate Judge
Lois Bloom for a Report and Recommendation (“R&R”).
dated April 7, 2017.)
On May 30, 2017, Judge Bloom issued an R&R,
in which she recommended that the motion for settlement approval
be denied without prejudice with leave to file a new motion for
settlement approval addressing the concerns raised in the R&R, and
that plaintiff be directed to withdraw her motion for a default
The R&R notified parties of the right to file written
objections, pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of
Civil Procedure 72(b).
(ECF No. 26, R&R at 13.)
defendants have not filed an appearance with the court, nor has
either party objected to the R&R.
However, the parties filed a
joint letter on June 28, 2017, advising the court that a revised
agreement has been agreed upon, and that they intend to submit the
revised agreement for approval.
The statutory period for filing
objections has now expired.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C). Where “no or merely perfunctory objections”
to the Report and Recommendation have been filed, however, the
district court reviews for clear error.
Caires v. JP Morgan Chase
Bank N.A., No. 16-cv-2694, 2017 WL 384696, at *1 (S.D.N.Y. January
The district court is permitted “to adopt those
sections of a magistrate judge’s report to which no specific
objection is made, so long as those sections are not facially
S.E.C. v. Nadel, No. 11-cv-215, 2016 WL 4718188, at
*2 (E.D.N.Y. September 9, 2016) (citations omitted).
Upon a review of the Report and Recommendation, and
considering that the parties have failed to object to any of Judge
Bloom’s thorough and well-reasoned recommendations, the court
finds no clear error in the R&R and hereby affirms and adopts the
R&R in its entirety.
Accordingly, plaintiff’s motion for settlement approval
is denied without prejudice.
The parties are granted leave to
file a new motion for settlement approval which addresses the
concerns raised by Judge Bloom’s R&R within 30 days of this Order.
The court further grants plaintiff’s request to withdraw her motion
for default judgment.
settlement agreement should address the following as set forth in
Counsel for defendants must immediately file a
notice of appearance before this court;
The parties should include a brief recitation of
disputed facts to facilitate fairness review;
The parties must demonstrate that the financial
considerations in the proposed settlement agreement
are based on defendants’ substantiated financial
[damages] calculation” of “$57,466.91 in overtime
Approval at 2), and why this figure differs from
her initial damages request of $196,919.17 in the
motion for default judgment (see ECF No. 22, Motion
for Default Judgment ¶ 16);
The parties should tailor the proposed release from
liability to the instant FLSA and NYLL action, and
should provide the court with a copy of the proposed
release that plaintiff will sign;
Counsel for plaintiff should submit contemporaneous
attorneys’ fees from the amount requested in the
motion for default judgment;
The parties should revise the settlement agreement
to account for all nineteen payment installments,
and should specify contemplated timing for delivery
of each payment;
payments to plaintiff and her counsel shall not be
plaintiff shall receive in each installment;
The affidavit of confession of judgment of Manuel
Sanchez shall state the total sum of the judgment;
settlement approval, the settlement agreement, and
the release, and Judge Bloom’s R&R and this Order,
were translated to Spanish and provided to both
plaintiff and defendants.
Kiyo A. Matsumoto
United States District Judge
July 5, 2017
Brooklyn, New York
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